Principles of Islamic Jurisprudence by MH kamali

These differences of perspective have however been

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Unformatted text preview: t in takhsis. The two texts, namely the general text and the specifying text, in effect complement one another. This is not, however, the case with naskh, in which it is necessary that the two rulings are genuinely in conflict and that they could not coexist. Another difference between naskh and takhsis is that naskh can occur in respect of either a general or a specific ruling whereas takhsis can, by definition, occur in respect of a general ruling only. [36. Ghazali, Mustasfa, I,71; Badran, Usul, p.452.] As already stated, naskh is basically confined to the Qur'an and Sunnah and could only be effected by the explicit rulings of divine revelation. Takhsis on the other hand could also occur by means of rationality and circumstantial evidence. Naskh, in other words, can only occur by shar' whereas takhsis can occur by rationality (`aql ), custom (`urf) and other rational proofs. It would follow from this that takhsis (i.e. the specification or qualification of a general text) is possible by means of speculative evidence such as qiyas and solitary Hadith. But in the case of naskh, a definitive ruling, that is, a qat'i, can only be abrogated by another qat'i ruling. Abrogation, in other words, is basically not operative with regard to speculative rulings. [37. Amidi, Ihkam, III, 113; Badran, Usul, p.453.] Principles of Islamic Jurisprudence ~ Kamali 149 [35. Ghazali, As already stated, in naskh it is essential that the abrogator (al-nasikh) be later in time than the ruling which it seeks to abrogate. There can be no naskh if this order is reversed, nor even when the two rulings are known to have been simultaneous. But this is not a requirement of takhsis. With regard to takhsis, the Hanafis maintain that the 'Amm and the Khass must in fact be either simultaneous or parallel in time. But according to the majority, the `Amm, and the Khass, can precede or succeed one another and they need not be in any particular chronological order. Lastly, naskh does not apply to factual reports of events (akhbar) whereas takhsis could occur in regard to factual reports. Thus a news report may be specified or qualified, but cannot be abrogated. The closest concept to abrogation in regard to reports is that they can be denied. Another issue which arises concerning naskh is whether a subsequent addition (taz'id) to an existing text, which may be at variance with it, amounts to its abrogation. When new materials are added to an existing law, the added materials may fall into one of the following two categories: (1) The addition may be independent of the original text but relate to the same subject, such as adding a sixth salah to the existing five. Does this amount to the abrogation of the original ruling? The majority of ulema have answered this question in the negative, holding that the new addition does not overrule the existing law but merely adds a new element to it. (2) The new addition may not be independent of the original text in that it may be dealing with something that constitutes an integral part...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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